The arguments in both cases will probably take place late in March, with opinions expected by the end of the high court’s term in June.

The court made no announcement about the other pending certiorari petitions from DOMA rulings by the Boston-based First Circuit or by district courts in California and Connecticut. Nor did the Supreme Court say anything about a case involving Arizona’s efforts to rescind its public employees domestic partner benefits.

In the Prop 8 case, the Ninth Circuit ruled the 2008 voter referendum, which placed a different-sex-only definition of marriage into the California Constitution, violates the constitutional equal protection rights of same-sex couples because there was no rational basis to rescind the right to marry granted earlier that year by the California Supreme Court. Same-sex couples were marrying in California from mid-June 2008 through Election Day, when Prop 8 was enacted.

The initial challenge to Prop 8 went before the California Supreme Court, which held that its enactment was valid, though it also ruled that the marriages that took place prior to November were valid and would continue to be recognized. Its earlier state equal protection ruling required that same-sex domestic partnerships in California be treated by the state as equal to marriage for all legal purposes, that court found.

The American Foundation for Equal Rights (AFER) retained noted Supreme Court advocates Ted Olson, a former US solicitor general, and David Boies to challenge Prop 8 on behalf of two same-sex couples denied marriage licenses. After a trial held in the district court in San Francisco, Judge Vaughan Walker declared Prop 8 unconstitutional in a sweeping ruling that found that same-sex couples have a right to marry under the equal protection and due process clauses of the 14th Amendment. Because neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown, who is now governor, would defend Prop 8 against the lawsuit, Walker allowed the referendum’s Official Proponents to intervene as defendants.

The Proponents appealed Walker’s ruling to the Ninth Circuit, which stayed his order pending the outcome of the case. The Ninth Circuit first held that the Proponents had standing to appeal Walker’s ruling, after obtaining an advisory opinion from the California Supreme Court that initiative sponsors enjoy that right under state law. The appeals court then affirmed Walker, but on the narrower theory that no rational basis had been shown for the state to withdraw the right to marry after it had been granted.

In their petition to the Supreme Court, the Proponents posed the broader question –– on which the Supreme Court has now granted review –– of whether same-sex couples are entitled by virtue of the 14th Amendment to the same right to marry enjoyed by different-sex couples.

But the high court will revisit the question whether the Proponents have standing to represent the State of California in defending Prop 8. If the Court rules that they did not have standing to appeal Walker’s ruling as a matter of federal law, that would mean that neither the Supreme Court nor the Ninth Circuit would have jurisdiction to decide their appeal. In that event, Walker’s ruling, which was not appealed by any of the named defendants in the case –– such as the governor or attorney general –– would be the final ruling, binding in the state of California. Same-sex couples would once again have a right to marry there.

If the Supreme Court finds that the Proponents did have standing, it would proceed to consider the merits of the case. It could decide to answer the question on which it granted review –– whether California can reserve the status of marriage to different-sex couples –– or it could, if so inclined, accept the narrower reframing on which the Ninth Circuit decided the case and find that that Prop 8 violated the 14th Amendment because no rational grounds exist to rescind an existing right to marry, especially in a state whose Supreme Court had ruled that same-sex domestic partners were entitled to all the rights of marriage.

In other words, the December 7 action by the Supreme Court offers no guide as to how broad or narrow its final decision might be.

Edie Windsor after her June victory at the district court in New York. | DONNA ACETO

In United States v. Windsor, the Second Circuit ruled that Section 3 of the 1996 federal Defense of Marriage Act –– which bars federal recognition of otherwise legal same-sex marriages –– violates constitutional equal protection rights of such couples because the court found no important government interest was significantly advanced by treating them unequally to different-sex married couples.

Edith (Edie) Windsor, the plaintiff represented by the American Civil Liberties Union, is suing for a refund of taxes paid –– amounting to more than $360,000 –– on her inheritance of property from her wife, Thea Spyer, who passed away in 2009, several years after they had married in Canada. Surviving spouses don’t have to pay taxes in that situation, but the Internal Revenue Service relied on Section 3 of DOMA as authority to demand the taxes and deny any refund. It was in the context of this case that the Justice Department and the Obama administration, in early 2011, determined that Section 3 was unconstitutional and declined to defend it on the merits.

Paul Clement, another former solicitor general, was hired by the Republican leadership of the House of Representatives –– acting as the so-called Bipartisan Legal Advisory Group (BLAG) –– to intervene and defend Section 3. After losing the case in the Second Circuit earlier this year, Clement filed a petition on BLAG’s behalf before the Supreme Court.

Donald B. Verrilli, Jr. , the current solicitor general –– the third holder of that office to turn up in this story, for those keeping score –– also filed a petition, stating its agreement with the Second Circuit’s decision but asking the high court to take the case so there would be a clear ruling on Section 3’s constitutionality with nationwide application. The Second Circuit’s ruling is only binding in the handful of states making up that federal judicial circuit.

In granting the solicitor general’s petition (not Clement’s petition), the Court added two questions: First, in light of the solicitor general’s agreement with the Second Circuit’s ruling, did Verrilli have standing to appeal the case to the Supreme Court, and, second, does BLAG have such standing.

In both the DOMA and Prop cases, then, the Supreme Court added questions to those posed by the petitioners, signaling the possibility it could find it does not have jurisdiction to rule on the merits in either. Under the Constitution, the Court is limited to deciding actual “cases and controversies,” which it has construed to mean that only a party with a distinct personal stake in the outcome of a case has “standing” to bring their case to federal court. Plaintiffs must have standing to initiate a lawsuit, and appellants must have standing to appeal a trial court’s ruling. If the petitioners in one or both of these cases don’t have standing, then that case is not a real “case or controversy” for constitutional purposes and so is outside the court’s jurisdiction.

As a result, the court’s December 7 actions raise all sorts of interesting questions that will probably keep scholars and commentators busy speculating from now until whenever the cases are disposed of. If the court finds that none of the petitioners have standing, it will dismiss these appeals. And, a ruling on standing also affects the jurisdiction of the courts of appeals. Presumably, a party that does not have standing to appeal to the Supreme Court also lacks standing to appeal a trial court’s ruling to a circuit court of appeals.

That technicality would not affect the outcome in Windsor’s case, since she won at the district and appeals court levels. She would be entitled to her tax refund in such an event. But her victory at the district court level would establish no precedent. And if the petitioners in the Windsor case lack standing, then the very same parties lacked standing in the First Circuit DOMA case, where the 1996 law was also ruled unconstitutional at both the district and appellate levels. The district court ruling in that case, then, might also only be binding on the particular parties and their individual claims for federal benefits.

At the end of the day, I don’t believe the Supreme Court will find that the US solicitor general lacks standing to bring these cases before it. The number of federal district courts that have ruled against the constitutionality of Section 3 is steadily mounting, more lawsuits are in the pipeline, and a nationwide resolution of its constitutionality is needed.

As a result, my conclusion is that the court will likely proceed to the merits on Windsor, and I think there is a good chance it will decide, by at least a vote of 5-4, that the lower courts are correct in holding it unconstitutional. The progress of the marriage equality movement may help to influence the court in reaching that conclusion. As of January 1, same-sex marriage will be legal in nine states and the District of Columbia, and if Judge Walker’s ruling eventually goes into effect, in California as well. As the proportion of the country living in marriage equality states increases, the “anti-democratic” effect of a Supreme Court ruling on this issue decreases.

Arthur S. Leonard, a New York Law School professor, is the founding editor of Lesbian/ Gay Law Notes.

10 Responses to Supreme Court Takes Marriage Cases, But Leaves Itself an Out

Perley J. Thibodeau December 7, 2012 at 8:23 pm

I've been waiting ten years the 2nd of this past November on a decision from Social Security.
This on money that I worked and earned.
It's been to the top of the Second District Court of Appeals for Southern New York twice now.
I was 62 when it started and I'm 72 now.
Everyone has made a fortune on this except me.
The wheels of justice move slowly.
To coin a very old phrase.
All we can do on this matter before us now is hope, pray and wait.

I just have to share this with you guys.
It's in today's New York Daily News.
PerleyThibodeau 27 minutes ago
Yes, marriage is a sacred vow made by one devoted man and one devoted woman under the approving auspices of God.
One of my older brothers was a big good looking high school football player who married one of the opposite team's beautiful cheer leaders.
They had a beautiful baby boy who not only looked like my brother but also looked quite a lot like me.
Less than a year after their vows were publicly solemnized she was in a car accident that left a barely discernable scar over her upper lip.
For this she collected a thousand or so dollars.
He wanted to buy a car with the money but she wanted to buy a fur coat.
So, she divorced him and bought the fur coat.
He immediately met a beautiful blonde who not only had a car but she also owned a fur coat.
If you want to know the sad soap opera ending to this true tale of connubial bliss gone wrong, then you'll just have to read my next book.

I have been reading a lot of analysis and commentary that examines why the Court would grant cert in the Prop 8 case. Many argue that the Court is more likely to make a sweeping decision for or against marriage equality rather using the issue of standing as an escape hatch, because it could have simply denied cert and had the same effect. However, I believe that the high likelihood that the Court will find DOMA unconstitutional helps to explain why they took the Prop 8 case. Overturning DOMA could lead to a spate of law suits challenging state constitutional bans on 14th Amendment grounds. If challenges to these bans ensue in states like Oregon or Montana with Democratic Governors and Attorneys General, than the issue of who has standing to defend them could be quite significant. It seems quite possible that those state elected officials could choose to follow California's example and not defend the bans in Federal Court, leading private interests, like the proponents of the bans, to take up their defense.

While I would dearly love to see Justice Kennedy write another landmark gay rights decision and don't really believe that it would result in the kind of lasting Roe v. Wade-esque backlash that some fear, I think that he and the progressive wing of the Court are far more likely to take a cautious incremental step forward at this time. However, I predict that within the next 3 – 5 years, the Roberts Court will rule in favor of marriage equality on 14th Amendment grounds and, ironically, on 1st Amendment Establishment Clause grounds.

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